Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society – Note by Chris Johnstone

From Volume 77, Number 2 (January 2004)

Throughout the 1970s, the Bronx borough of New York City was perceived as a microcosm of desolate American urban hopelessness. Within this economically barren wasteland, the city’s culture cultivated a colorful new form of musical art, organically sown from the seeds of the past. What was born as a fringe musical movement has evolved into an American cultural mainstay. Today, hip-hop music experiences tremendous mainstream success, both as a credible art form and as a business. Yet the success and proliferation of this genre has largely relied on the use of samples of past funk, rock, and soul compositions.

Copyright law was established as a mechanism for the promotion of innovation. In the realm of digital sampling, however, its role remains somewhat unclear. It is obvious that unauthorized copying of original compositions should be unlawful, but the extent of this protection remains a doctrinally elusive concept when applied to small or manipulated fragments of music. Specifically, the issue of digital sampling suffers from a lack of clear judicial guidance. Although sampling can clearly be translated into standard copyright doctrine, its exact fit has yet to be definitively declared by the judiciary. District courts have only sporadically tackled the topic, deterring potential litigants who fear the consequences of inconsistent doctrinal application.

This Note will look at the issue of digital sampling through the lens of recent commentary that suggests that copyright law exists, in large part, for the purpose of reinforcing democratic principles such as informed debate, pluralism, and civic participation. It will attempt to unravel the tangled doctrine regarding digital sampling to demonstrate the pitfalls of the present regime, and will later suggest more appropriate guidelines for the recording industry that will minimize unnecessary fees and eliminate deadweight economic loss.



The First Chink in the Armor? The Constitutionality of State Laws Burdening Judicial Candidates After Republican Party of Minnesota v. White – Note by Alexandrea Haskell Young

From Volume 77, Number 2 (January 2004)

Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.

The White decision has the potential to impact all thirty-nine states with elected judiciaries. Eight states besides Minnesota have or had the announce clause language as part of their judicial codes, and those states have either amended or most likely will need to amend their codes. The announce clause, however, is not the only statutory provision restricting judicial candidates. The majority opinion in White was clear in noting that its holding applies only to the announce clause, and the Court refused to grant certiorari to challenges of other state provisions affecting judicial speech. Nevertheless, the decision has sent the other thirty states with elected judiciaries scrambling to their codebooks to determine how this decision will affect their statutes and future judicial elections. One thing seems to be certain: Litigation is sure to follow. This Note will explore the potential fallout from the White decision by analyzing facial constitutional challenges to various state laws that limit the speech of candidates for judicial office.



Consent by all the Governed: Reenfranchising Noncitizens as Partners in America’s Democracy – Note by Gabriela Evia

From Volume 77, Number 1 (November 2003)

The United States has been the pioneer of democratic values on the stage of world history for over two hundred years. The foundation of a democracy is the right of the governed to elect their political leaders. As President Lyndon B. Johnson told Congress in 1965, Americans have “‘fought and died for two centuries’” to defend the principle of “‘government by consent of the governed.’”

Despite these democratic values, one particular group in our country is governed but has lost the right to vote – noncitizen legal permanent residents (“LPRs”). Noncitizen LPRs are legal immigrants. They are foreign-born individuals who have been granted legal permanent resident status by the U.S. government. This status allows them to live and work in the country indefinitely. Noncitizen LPRs pay taxes at the local, state, and federal levels, they can serve in the military and are eligible for the draft, and they are subject to all the laws of the United States. Although they have all the political, social, and military obligations of citizens, noncitizen LPRs are no longer allowed to vote in any state due to the recent amendments of state constitutions, which have disenfranchised noncitizens and limited the franchise to U.S. citizens. Prior to this disenfranchisement, noncitizens legally voted in local, state, and national elections for over one hundred years.



Attacks on a Tax: An Alternative to the Earned Income Tax Credit to Remedy the Unfairness in the Payroll Tax System – Note by Dan Seltzer

From Volume 77, Number 1 (November 2003)

The United States raises revenue through a variety of taxes that are fragmented or “disaggregated” into multiple components. Although most Americans think of taxes primarily in terms of the income tax, its lesser known cousin, the payroll tax, produces nearly identical revenues while falling disproportionately on the poor and middle-class. Disaggregating the tax system into several component taxes thus conceals the true aggregate tax burden on taxpayers. This misleading effect is exaggerated because the media and politicians focus on the income tax while ignoring the equally significant payroll tax.

In recent years, taxes have played a central role in most major political campaigns. President George W. Bush centered his campaign on tax issues, and passage of his 2001 tax relief package, the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”), was one of the first major accomplishments of his administration. Yet, despite this pronounced emphasis on reducing taxes, the media and politicians from both parties appear oblivious to the payroll tax, even though it represents the single largest tax for two-thirds of all Americans. Indeed, even as President Bush made tax cuts for the working poor a priority for his administration, these cuts generally affected only income taxes. His 2001 budget included extensive discussion on the income tax, but the sole mention of the payroll tax appeared in a footnote.



Through the Looking Glass: Racial Jokes, Social Context, and the Reasonable Person in Hostile Work Environment Analysis – Note by Melissa K. Hughes

From Volume 76, Number 6 (September 2003)

Communicating ethnic animosity through humor has long been an American tradition. As early as the seventeenth century, Americans have utilized racial jokes to ridicule the culture, dialect, dress, and traditions of each new wave of immigrants. Images of “little black Sambo,” “the drunken Irishman,” and “the stupid Pole” have helped to define which ethnic groups are accepted and which remain on the fringe of society. Although racial jokes convey a wide variety of messages ranging from friendly teasing to flagrant racism, when channeling racism and hostility they comprise one of the greatest weapons in the “repertory of the human mind.” Furthermore, while many dismiss jokes as a nonserious form of communication, racial jokes historically have played an important role in the development of American race relations.

In the decades following the civil rights movement, minority groups successfully applied political and social pressure to persuade Americans to oust racial jokes from the public sphere. Joseph Boskin, a leading scholar on ethnic humor, contends that despite the invention of politically sensitive speech, the popularity of racial jokes in the closing decades of the twentieth century skyrocketed nationwide. Ida L. Castro, the Chairwoman of the Equal Employment Opportunity Commission (“EEOC”) stated, “[t]he Commission is seeing a disturbing national trend of increased racial harassment and retaliation at workplaces across the country. This harassment at work sites includes egregious behavior which is reminiscent of the days of the civil rights movement.” This simultaneous resurgence of racial jokes and harassment reveals that discrimination remains a pressing social and legal issue.



None of Your Business (Interest): The Argument for Protecting All Employee Behavior with No Business Impact – Note by Jason Bosch

From Volume 76, Number 5 (July 2003)

At the beginning of the twentieth century, major American companies had entire departments staffed with hundreds of—sociological specialists who were charged with monitoring the private behavior of company employees—often in their homes—to make sure they did not drink too much, had appropriate sex lives, kept their houses clean, and used their leisure time properly. Worker privacy and autonomy has made tremendous advances since that time, but even today employers continue to take actions against employees whose off-the-job behavior they find objectionable. Recent examples of employee—offenses include cohabitating with a partner outside of marriage, smoking, drinking, motor-cycling, and even having a high cholesterol level.

The baseline presumption at common law is that employment is at the will of either party. Even with the modern dilution of this doctrine and the many exceptions that have been carved out by courts and by statute, employers still have the ability to discharge, or constructively discharge, an employee for doing anything not protected by a specific statute or not included in the nebulous protection against violations of—public policy. This broad deference to employers’ judgment in employment matters is a result of judicial reluctance and inability to deal with issues relating to business efficiency and job performance. At-will employment encourages the flexibility and freedom needed for managers to make efficient decisions that best help their businesses compete in the marketplace. Certainly there is a consensus that managers know much better than judges what policies are needed to foster peak performance from their workforce. However, employees should not have to relinquish autonomy over every aspect of their lives just to get or keep a job. Employers have a vested interest in controlling those aspects of employees’ lives that reasonably affect the employees’ performance on the job, but that does not justify giving employers carte blanche to control every aspect of their employees’ lives. This Note argues that employers should only be able to take employment actions against employees for behavior that sufficiently impacts legitimate business interests.



Race, Reasonableness, and the Rule of Law – Note by Aaron Goldstein

From Volume 76, Number 5 (July 2003)

In recognition of the fearsome powers faced by defendants, the criminal justice system has built into it a multitude of counterbalancing defendants’ rights. There exists, however, a special breed of criminal trial involving a third and even weaker voice, a voice that may not even be heard during the trial. Criminal defendants who claim they committed acts of violence only in self-defense place their victims on trial – sometimes rightfully, sometimes to avoid well-deserved guilt. The wealth of protections afforded to criminal defendants give them wide latitude to attack victims who do not enjoy such robust protections.

While a rich dialogue regarding victims’ rights in general already exists, this Note focuses on a particular type of victim and a particular type of attack. This Note deals with the play of the race card by criminal defendants to justify their decision to maim or kill, and argues that appeals to racial stereotypes ought to be excluded under the Rules of Evidence. Not only would this serve to protect the rights of the victim to a fair assessment of the victim’s actions at trial, but it would also have positive reverberations among law enforcement and private citizens outside the court. Such evidentiary rules would put everyone on notice that race is no basis for taking a life.

Part I of this Note discusses particular instances where racial stereotypes have played a part in a claim of self-defense. Part II provides a normative argument for why evidence regarding a victim’s race ought to be excluded. This Part also differentiates claims of self-defense that involve appeals to race from claims that do not rely on socially constructed generalizations regarding race, gender, and so on. Part III provides a legal basis and a formal proposal for a rule excluding evidence of the victim’s race as well as suggestions for how such exclusions might be implemented.



Supplying the Tax Shelter Industry: Contingent Fee Compensation for Accountants Spurs Production – Note by Ben Wang

From Volume 76, Number 5 (July 2003)

The use of abusive tax shelters by major corporations has been called “‘the most serious compliance issue threatening the American tax system . . . .’” Losses to the Department of the Treasury (“Treasury”) are estimated to range anywhere from $7 billion to $30 billion per year. Meanwhile, corporate profits have risen 23.5% while their corresponding tax obligations rose by only 7.7%. Personal income taxes, on the other hand, are up 44%, which represents 79% of the total federal income tax and is estimated to increase to 85% by the year 2004. Also astounding is that the corporate tax-to-profit ratio has dropped between 1.5% and 2.9%, roughly translating into a decrease in corporate income tax receipts between $13 and $24 billion. Although the decrease in corporate tax receipts is unlikely to be attributed to a single cause, many commentators point to the growing acceptance of abusive tax shelters by large corporations as a major contributor.

The growing acceptance of abusive tax shelters by large corporations has been characterized as a “race to the bottom.” The perception that competitors are actively participating in abusive tax shelters has created an environment ripe for the promotion of tax schemes promising to zero out a corporation’s taxes. The major accounting firms are using armies of professionals to promote these schemes. Moreover, they have developed the resources, both in expertise and manpower, to capitalize on and perpetuate the perception. The role played by the Big Five in the tax shelter industry is extensive. They have created for themselves a vested interest in the proliferation of tax shelters through the use of contingency fees.



Compulsory Voting in America – Note by Sean Matsler

From Volume 76, Number 4 (May 2003)

Persistently low voter turnout in the United States continues to disappoint lovers of democracy. When scarcely half of the population of eligible voters turns out for a presidential election once every four years – to say nothing of midterm congressional elections or local elections – it becomes difficult to defend American democracy as truly representative. Instead, the will of the active voters, who constitute a stark minority of the eligible voting population, ultimately determines the electoral outcome. This regrettable situation is not the essence of a participatory democracy.

Although low turnout might easily be blamed on an American electoral lethargy, it could also be understood as a failure of the American electoral structure to motivate voter turnout. Accepting that premise as fact, it becomes possible to treat declining voter turnout as an opportunity to reconsider what has until now been a staple of American democracy: voluntary voting.